Holders of the green card «Green card»Are non-US citizens who are legally authorized to live and work permanently in the United States. There are a variety of methods through which non-citizens can obtain permanent residence. The bases for receiving a green card “Green Card” include family connections, political asylum, adoption and employment.
This article will focus on foreign labor certification, which is the process through which employment-based green cards are obtained. Employment-based green cards are issued when the applicant has a permanent employment opportunity in the US.
Foreign Work Certificate – USA Work Permit
Most foreigners applying for an employment-based Green Card are already working for the company that will sponsor their green card application (usually with H1 or L1 visas). The difficulty in sponsoring employees to obtain the green card is due to the lengthy process and the fact that employers must demonstrate that there is a shortage of eligible employees in the United States for that type of work. The process for determining whether there is such a worker shortage is called PERM Labor Certification (referred to simply as “labor certification” in this article).
Labor certification is the first step to obtaining a green card based on employment. The application for certification is submitted to the Department of Labor (“DOL”). Simply put, employers will have to advertise and interview U.S. citizens, be unable to find a suitable candidate, and demonstrate this inability to the DOL before they can hire a foreign national through green card sponsorship. .
Exemptions
It should be noted that not all employment-based green cards need to be accompanied by a labor certification for foreign applicants. The United States has determined that certain classes of foreign employees do not need labor certification (the policy is typically kind to well-educated immigrants). The following are types of employees who are exempt from labor certification:
- Aliens of extraordinary ability in Business, Science, Arts, Education, or Athletics; outstanding professors / researchers; and international executives / managers (for example, managers or CEOs of multinational companies). This group of employees is known as Employment First Preference.
- Advanced Graduate Professionals, or Individuals with Exceptional Ability in the Arts, Sciences or Business (Second Employment Preference)
- Skilled workers, professionals with baccalaureate degrees, and other workers (third-preference employment)
- “Special” immigrants, such as certain religious workers (Fourth Employment Preference)
- Wealthy immigrants who will invest between $ 500,000 and $ 1 million that will create at least 10 full-time jobs in the United States (Fifth Preference Employment)
The above exemptions are listed in descending order of preference for receiving green cards, which means that the Employment First preference group makes up a much higher percentage of employment-based green card holders than the Fifth Preference. For those immigrants who do not qualify under a labor certification exemption, the process they must follow to obtain a successful labor certification is discussed below.
Apply with the State
The first step is to file an application with your state Employment Security Agency (SESA) or the State Workforce Agency (SWA). Depending on your state, the name of the agency will be different. The employer must submit an ETA-750 form from the Department of Labor. This form will include information in the job description, such as the qualifications and experience necessary to perform the job. In addition, the form will describe how the potential immigrant candidate meets these requirements.
The SWA will then review and approve the submitted grades. Part of this process will be what is called a prevailing wage determination, which is the state that is investigating the normal rate for equivalent employment in the U.S. Once this determination is made, the employer will have to pay 100 per percent of that rate to the employee.
Hiring process
After the state agency reviews your application and makes a salary determination, you will have to go through a recruiting process in an attempt to find US citizens who can do the job listed. This recruitment process is strictly monitored by the SWA, following DOL regulations. Employers must publicize the job by submitting the job posting to state databases and publications such as newspapers and job bulletins. They should also interview anyone who meets the listed requirements.
After the appropriate recruitment period, employers will send the results to the SWA. The SWA will closely examine the results to ensure that all appropriate announcements were posted, all qualified candidates were interviewed, and, if appropriate, job offers were made. The DOL is very serious about hiring US citizens before future immigrants, particularly in times of high unemployment. The SWA will evaluate the recruitment process and transmit its report to the DOL.
Results and approval of the DOL
If you cannot find a US citizen who is qualified and willing to do the job, and the state agency has approved your recruitment process, you can apply for labor certification to the DOL. The application requires the completion of the ETA-9089 form (PDF). If the DOL determines that the recruitment process was unfair or not conducted in good faith (for example, you did not seriously consider a United States citizen who was qualified for the position), the DOL may disqualify an application for labor certification.
Post authorization process
After the labor certification is approved, the employer files a visa petition (USCIS Form I-140). After this petition is approved, the prospective immigrant employee applies for his green card. For more information on green card applications, see the FindLaw article, Apply for a Green Card.
Do you need legal help to obtain a foreign labor certificate?
No two employment situations are exactly alike, and there may be times when you need additional experience to help you complete the foreign labor certification process. Consider contacting a business and commercial law attorney or immigration attorney who is familiar with the process.